Page:Federal Reporter, 1st Series, Volume 4.djvu/907

 UNITED BTATES V. NYB, 8^3 �difficulty and objection by entering a nolle as to a pari of the counts, or the court would compel him to elect. The rule is clearly laid down by Parke, J., and is found on page 198 of Bishop's Crim. Procedure. �Suppose a statuts has been passed which in terms pro- vided that an indictment should contain but one felony only, would that change in any wise the rule -which governs the criminal procedure where an indictment contained more than one, — would it prevent the prosecutor from entering a noUe as to the one or the other count, or would it prevent the court from compelling the prosecutor to elect which one he would proceed upon ? Most certainly not. And to permit the prosecutor to enter a nolle as to one, or compelling the pros- cutor to elect which one of the several counts he would pro- ceed upon, could not be said, in the language of Archibald, (and the only authority referred to by the learned counsel for the defendant,) "to be a striking out of a count, by the court, of an indictment," which the court would have no power to do. In ail cases where there has been an improper number of offences Joined in an indictment, the court un- doubtedly may, in its discretion, quash the indictment ; but it is always addressed to the sound discretion of the court in a case of that character. It may, in its discretion, quash the indictment, or it may permit the prosecutor to nolle certain counts, or it may compel the prosecutor to elect which one he will proceed upon, so that the defendant shall in no sense be prejudiced in his defence; Thatiswell settled by Bishop's Criminal Proc. 182, 228; Wharton's Criminal Law, § 416. �This clause of this section seems to be a transcript, or at least it seems to have foUowed, 14 and 15 Victoria, c. 100, '§§ 15, 16, and 17. Section 15 is in regard to joining several larcenies in a single count in an indictment. Section 16 is as foUows: "That it shall be lawful to insert several counts in the same indictment against the same person for any number of distinct acts of stealing, not exceeding three, which" may have been committed by him against thd same person within the space of six calendar months from the first ����